When is a loss not a loss? The answer, of course, is when it results in a win!
A few weeks back, our former (read on to determine why) client lost an application to stay the charges against it, with the judge determining that although the Crown Prosecutor’s behavior in the case was “petulant”, it did not rise to the “clearest of cases” threshold necessary for the administration of justice to have been brought into disrepute, and for a stay to be entered.
While we weren’t actually counsel of record for the application itself (having been forced to remove ourselves from the file, in order to swear an Affidavit setting out the Crown Prosecutor’s conduct), an interesting thing happened just one month after the judge issued his decision. The Crown, despite having been successful on the application, still decided to stay the charges!
Why? Well, here’s the thing about when the Crown stays a prosecution: it never has to actually tell you why it’s pulling the charges. And to be perfectly honest, a lot of times it doesn’t.
But being familiar with the case, we’ve certainly got our opinions. And they all go back to not only the nature of the application, which we’ll explore more in the coming weeks, but also the information that we made available in our Affidavit in support of the application.
As we’ve mentioned in previous posts, from the moment charges are laid, there is an ongoing obligation on Crown Prosecutors to review:
whether there is a “reasonable likelihood of conviction”, and
whether a prosecution is in the “public interest”.
If at any time either one of those considerations are answered in the negative, the Crown is under an obligation to stay the charges. Which in some cases, means that it will make sense for an employer to “put all their cards on the table” prior to trial.
This was one of those cases. Our client had what we thought to be an incredibly strong defence, and we wanted the Crown to know that. And although we’d made the decision to put the employer’s cards on the table, in the form of a letter, several months prior to the application, we also chose to include that letter as an exhibit to our Affidavit. The strategy being, that even though the particular Prosecutor that received the letter (and whose conduct was the subject of the application) may still have believed there was a reasonable likelihood of conviction, it was highly likely that the application and supporting materials would be reviewed by another Prosecutor in the course of or following the application, who might assess the matter differently. In other words, the goal of the application was really two-fold: to not only address the conduct of the Prosecutor in question, and seek a stay of the charges on that basis, but to also have a fresh set of eyes at the Crown’s office have another look at the merits of them. While we can’t say for certain that’s what actually happened, the result is clear: our client may have lost the battle, only to have won the war!